Socialize the Law? First Stop Condescending to Non-Corporate Lawyers

In making his case for socialized law, Noam Scheiber implies that lawyers for poor and middle class clients don’t do as good a job as lawyers for rich clients. The result, he says, is that “the more money one side has to spend in a legal proceeding, the more legal horsepower it will acquire, and the more likely it is to win.” Eric Posner has responded that we don’t know how much more likely—but even he agrees with Scheiber’s underlying premise: “No doubt a rich defendant will obtain a better lawyer than a poor defendant will.”

This attitude toward Main Street attorneys is identical to the one that many people display toward the clients of these attorneys: charitable (“it’s not their fault they can’t win”) but dismissive (“they’re still losers”). It reflects a limited understanding of who Main Street attorneys are and how they do business. And it threatens to perpetuate the gulf between the law’s treatment of people on Main Street and Wall Street that Scheiber seeks to eradicate by damning work with Main Street clients as a second-rate calling for lawyers.

Here are a couple of Scheiber’s and Posner’s assumptions about Main Street versus Wall Street attorneys that they should re-examine:

The most talented lawyers go to Wall Street, not Main Street. In this view, lawyers care only about their hourly billing rate and resulting compensation, so the best will always opt to make more money. But the reality is more complex. Some lawyers from elite law schools do routinely seek Main Street practice to fulfill goals that have nothing to do with their yearly bonus.

They may want a more balanced quality of life than you can get when you are stuck “comb[ing] through millions of pages of documents in search of exculpatory or incriminating evidence.” They may want to use their training in service of principles that are worth more to them than the $100,000-plus yearly pay cut they will take, like fighting against racial discrimination or fighting for a clean environment. While the Ivory Tower to Main Street path is by no means the dominant one, it represents a longstanding and thriving path for many attorneys. Billing rates, then, are not a failsafe proxy for legal talent.

Main Street and Wall Street attorneys represent completely different clients. True, you’d never see the likes of Bernie Madoff in the public defender’s office, but Main Street and Wall Street lawyers do collaborate regularly on cases. Sometimes this work is pro bono on the part of Wall Street attorneys—indeed, New York now makes some pro bono work a requirement to practice law in that state—but not always.

As Posner notes, there is money to be made from Main Street cases. But here’s what Posner doesn’t mention: Main Street lawyers will often have more expertise with certain types of cases—like challenging predatory mortgage lending—than Wall Street attorneys do. So Wall Street will send in some troops and some cash, Main Street will serve as the general or at least command central to coordinate the group’s efforts—and the results can be incredible victories for individual clients and the public interest.

Also missing from Posner’s account: sometimes Wall Street attorneys need Main Street attorneys to help represent their Wall Street clients. Corporate clients get sued across the country. Wall Street attorneys tend not to be admitted to practice outside of the coasts or a few interior urban areas, but they can’t appear in state court without being admitted to the bar of that state. To get around this impediment, Wall Street attorneys need to bring Main Street attorneys in as co-counsel so that the locals can take care of business in state courts. Indeed, having veterans of a particular court system on board typically enhances the Wall Street attorneys’ representation of their client. The locals know the judges, the customs, and the most effective on-the-ground strategies. They have ground game in a way that those confined to Wall Street’s skyscrapers do not.

As we seek to fix the very real, very pressing inequalities in our laws and legal system, let’s make sure we’re being fair to all the players involved. We shouldn’t lay the blame for the legal system’s treatment of people from Main Street at the feet of the attorneys who work diligently on their behalf.

Leah A. Plunkett is an Associate Professor of Legal Skills and Director of the Academic Success Program at University of New Hampshire School of Law.